UNITED STATES DISTRICT COURT FOR THE NORTHERN … · 5:17-CV-062-C, 2017 WL 6885790, at *2 (N.D. Tex. Aug. 10, 2017) (examining whether the amended complaint sufficiently addressed

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

) JOHN ANTHONY CASTRO, ) ) Plaintiff, ) Case No. 3:18-cv-00645-M ) v. ) ) GEORGETOWN UNIVERSITY ) AND NAN HUNTER, ) ) Defendants. )

BRIEF IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS FIRST AMENDED COMPLAINT

Case 3:18-cv-00645-M Document 14 Filed 05/14/18 Page 1 of 20 PageID 102

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TABLE OF CONTENTS

Page

INTRODUCTION......................................................................................................................... 1

BACKGROUND ........................................................................................................................... 3

ARGUMENT ................................................................................................................................. 5

THE COURT SHOULD DISMISS ALL OF CASTRO’S CLAIMS UNDER RULE 12(B)(6) FOR FAILURE TO STATE A CLAIM...................................................................................... 5

A. LEGAL STANDARD ............................................................................................................... 5 B. EACH OF CASTRO’S CLAIMS IS BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS ....... 5

1. Castro’s Section 1981 claims are subject to a two-year statute of limitations ............... 6 2. Castro’s Title VI claims are subject to a two-year statute of limitations ....................... 6 3. Castro’s TIPBR claim is subject to a two-year statute of limitations ............................. 6 4. Castro’s DCHRA claims are subject to a one-year statute of limitations ...................... 7 5. Each of Castro’s claims is time-barred .......................................................................... 7

IN THE ALTERNATIVE, THE COURT SHOULD DISMISS ALL OF CASTRO’S CLAIMS UNDER RULE 12(B)(2) FOR LACK OF PERSONAL OR GENERAL JURISDICTION ........................................................................................................................... 9

A. LEGAL STANDARD ............................................................................................................... 9 B. THE COURT LACKS GENERAL JURISDICTION OVER THE UNIVERSITY .................................. 10 C. THE COURT LACKS GENERAL JURISDICTION OVER HUNTER ............................................... 12 D. THE COURT LACKS SPECIFIC JURISDICTION OVER DEFENDANTS ......................................... 12

CONCLUSION ........................................................................................................................... 14


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TABLE OF AUTHORITIES

Page(s)

Cases

5636 Alpha Rd. v. NCNB Texas Nat. Bank, 879 F. Supp. 655 (N.D. Tex. 1995) .......................................................................................6, 7

Achee v. Port Drum Co., 197 F. Supp. 2d 723 (E.D. Tex. 2002) .......................................................................................6

Aguacate Consol. Mines, Inc. of Costa Rica v. Deeprock, Inc., 566 F.2d 523 (5th Cir. 1978) .....................................................................................................9 Am. Univ. Sys., Inc. v. Am. Univ.,

858 F. Supp. 2d 705 (N.D. Tex. 2012) ..............................................................................11, 12

BNSF Ry. Co. v. Tyrrell, 137 S.Ct. 1549 (2017) ..............................................................................................................10

Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) .................................................................................................................13

Celanese Corp. v. Clariant Corp., No. 3:14-CV-4165-M, 2015 WL 10580916 (N.D. Tex. July 27, 2015) (Lynn, J.) ....................................................................................................................................9, 13, 14

Chambers v. Green Tree Servicing LLC, No. 3:15-CV-1879-M-BN, 2016 WL 8672775 (N.D. Tex. Sept. 30, 2016)..............................5

In re Chinese–Manufactured Drywall Products Liab. Litig., 753 F.3d 521 (5th Cir. 2014) ...................................................................................................12

Di Lella v. Univ. of D.C. David A. Clarke Sch. of Law, 570 F. Supp. 2d 1 (D.D.C. 2008) ...............................................................................................7

Ebert v. Levy, No. CV 17-0925, 2018 WL 934834 (W.D. La. Feb. 15, 2018) ...............................................12

Frazier v. Garrison I.S.D., 980 F.2d 1514 (5th Cir. 1993) ...................................................................................................6

Griffin v. Am. Zurich Ins. Co., 697 F. App'x 793 (5th Cir. 2017) ...............................................................................................2 Hardnett v. Duquesne Univ.,

897 F. Supp. 920 (D. Md. 1995) ........................................................................................11, 12


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Henok v. Kessler, 78 F. Supp. 3d 452 (D.D.C. 2015), aff’d sub nom. Araya v. Kessler, No. 15-7021, 2015 WL 5210518 (D.C. Cir. Aug. 12, 2015) .................................................................7

Jeanbaptiste v. Wells Fargo Bank, N.A., No. 3:14-CV-264-K, 2014 WL 2158415 (N.D. Tex. May 22, 2014), aff’d, No. 14-10671, 2014 WL 7723129 (5th Cir. Nov. 7, 2014) ..........................................................4, 7

Johnson v. CitiMortgage, Inc., No. 3:14-CV-1794-M-BH, 2015 WL 269970 (N.D. Tex. Jan. 21, 2015) .............................4, 5

Johnson v. Crown Enterprises, Inc., 398 F.3d 339 (5th Cir. 2005) .....................................................................................................6

Jones v. Hartford Life & Accident Ins. Co., No. 2:16-CV-316, 2016 WL 5887601 (E.D. Tex. Oct. 7, 2016) ...............................................8

Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369 (2004) ...................................................................................................................6

Lux v. Bank of New York Mellon, No. 3:13-CV-1697-M, 2014 WL 684972 (N.D. Tex. Feb. 20, 2014)........................................8

Mann v. Bartolotta, No. 3:08-CV-1834PCD, 2009 WL 1098982, (D. Conn. Apr. 21, 2009) ...................................8

Monkton Ins. Servs., Ltd. v. Ritter, 768 F.3d 429 (5th Cir. 2014) ...................................................................................................10

My Fabric Designs, Inc. v. F+W Media, Inc., No. 3:17-CV-2112-L, 2018 WL 1138436 (N.D. Tex. Mar. 2, 2018) ................................10, 13

Norris v. Oklahoma City University, No. C-93-1626-VRW, 1993 WL 313122 (N.D. Cal. Aug. 3, 1993), aff’d, 21 F.3d 1115 (9th Cir. 1994) ........................................................................................................11

Park v. Oxford Univ., 35 F. Supp. 2d 1165 (N.D. Cal. 1997), aff’d, 165 F.3d 917 (9th Cir. 1998) ...........................11

Patton v. Fujitsu Tech. Sols., Inc., No. CIV.A.3:02-CV-1848-G, 2002 WL 31498996 (N.D. Tex. Nov. 7, 2002) ..........................8

Richards v. Duke Univ., 480 F. Supp. 2d 222 (D.D.C. 2007) .........................................................................................11

Russell E. Womack, Inc. v. N. River Ins., Co., No. 5:17-CV-062-C, 2017 WL 6885790 (N.D. Tex. Aug. 10, 2017) .......................................2


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Stredwick v. Dall. Margarita Soc'y, Inc., No. 3:12-CV-00623-F, 2012 WL 12893431 (N.D. Tex. Sept. 4, 2012) ....................................2 Stroman Realty, Inc. v. Antt, 528 F.3d 382 (5th Cir. 2008) ...................................................................................................10 Trustees of Columbia Univ. v. Ocean World, S.A.,

12 So. 3d 788 (Fla. Dist. Ct. App. 2009) .................................................................................11

Villas at Parkside Partners v. City of Farmers Branch 245 F.R.D. 551 (N.D. Tex. 2007) ..............................................................................................2 Statutes

28 U.S.C. § 1658 ..............................................................................................................................6

42 U.S.C. § 1981 ..........................................................................................................................4, 5

Title VI of the Civil Rights Act, 42 U.S.C. §§ 2000d et seq. ......................................................4, 5

District of Columbia Human Rights Act, D.C. Code §§ 2-1401.01 et seq. .............................4, 5, 7

Tex. Civ. Prac. & Rem. Code § 16.003 ...........................................................................................6

Other Authorities

Federal Rule of Civil Procedure 12(b)(6) ................................................................................3, 5, 7

Federal Rule of Civil Procedure 12(b)(2) ....................................................................................3, 9


INTRODUCTION

Plaintiff John Anthony Castro received an LLM in taxation from the Georgetown

University Law Center almost five years ago. Shortly before graduating, Castro applied to

participate in the University’s annual spring job fair in Washington, D.C. Upon review of

Castro’s resume, University employees noticed apparent discrepancies in his description of his

work experiences. The University investigated and learned that, while some of the discrepancies

might have been careless errors, others appeared to be deliberate misrepresentations. Defendant

Nan Hunter, then the Dean of the LLM program, met with Castro and warned him about the

implications of misrepresenting his qualifications to prospective employers, and ultimately

decided that Castro would not be permitted to attend the spring job fair.

Undeterred by the University’s decision, Castro reached out directly to employers who

would be attending and sought to arrange interviews with them at the job fair. When the

University found out, it also became aware of another misrepresentation Castro had made: he

claimed to have been a cadet at the U.S. Military Academy at West Point, when in fact he had

only briefly attended a prep school for students not yet academically qualified to attend West

Point. Hunter referred the matter to the University’s ethics counsel to assess whether Castro

should be disciplined. Ultimately, the University decided not to discipline Castro, and Castro

received his LLM on schedule in the spring of 2013.

Castro’s next interaction with the University came more than two years later, when he

sought to participate as an employer in the very same spring job fair from which he had been

excluded as a student based upon his dishonesty. Castro alleges correctly that Hunter and the

University decided that he should not be permitted to participate. But Castro also alleges –

without even attempting to provide any factual basis or context – that this decision was made

because he is Hispanic and in retaliation for a similar complaint of discrimination he claims to


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have made while he was a student at the Law Center. In response to the decision to deny him

participation as an employer in the job fair, Castro has sued the University and Hunter under

various federal and District of Columbia statutes and in tort.

Castro filed his Original Complaint on March 19, 2018, in response to which defendants

filed a motion to dismiss on April 17, 2018. On May 9, 2018, Castro filed an opposition to the

motion to dismiss, as well as a First Amended Complaint (“FAC”) which rendered the motion to

dismiss moot.1 Like the Original Complaint, the FAC has two fatal flaws that require the

dismissal of this case.

First, in the FAC, Castro studiously avoids mentioning the date on which the denial about

which he complains took place. As reflected unequivocally in an email defendants have attached

to this motion – to which the FAC refers and on which Castro’s claims depend – the University

denied Castro’s request to participate in the job fair as an employer on December 16, 2015. This

date places Castro outside of the applicable statute of limitations for every claim he asserts. On

1 The Northern District of Texas has held that “[t]he filing of an amended complaint generally renders pending motions to dismiss moot.” Stredwick v. Dall. Margarita Soc'y, Inc., No. 3:12-CV-00623-F, 2012 WL 12893431, at *1 (N.D. Tex. Sept. 4, 2012). Consistent with this approach, in a recent case the Fifth Circuit held that the plaintiff’s amended complaint rendered all earlier motions in the case moot. Griffin v. Am. Zurich Ins. Co., 697 F. App'x 793, 797 (5th Cir. 2017) (“Once filed, that amended complaint rendered all earlier motions, including [plaintiff]'s motion for partial summary judgment, moot.”).

In some cases, however, in determining whether a motion to dismiss has been mooted, courts have considered whether the defects identified in the motion to dismiss were cured by the amended complaint. See Villas at Parkside Partners v. City of Farmers Branch, 245 F.R.D. 551, 557 (N.D. Tex. 2007) (holding that a motion to dismiss was not mooted by an amended complaint because the same defects remained in the amended complaint as in the original complaint); Russell E. Womack, Inc. v. N. River Ins., Co., No. 5:17-CV-062-C, 2017 WL 6885790, at *2 (N.D. Tex. Aug. 10, 2017) (examining whether the amended complaint sufficiently addressed the concerns raised in the motion to dismiss and, determining that those concerns had been addressed, mooting the motion to dismiss). Here, with the exception of one new, meaningless sentence at the end of ¶ 22, the FAC is virtually identical to the Original Complaint. Thus, Castro has not cured the defects identified in defendants’ motion to dismiss; he has doubled down on the same defective claims. Nevertheless, in order to eliminate any dispute about this, defendants have elected to file a new motion to dismiss in response to the First Amended Complaint.


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that basis, his claims should be dismissed with prejudice under Federal Rule of Civil Procedure

12(b)(6).

Second, even if the Court declines to dismiss Castro’s claims as time-barred, it should

dismiss them under Rule 12(b)(2) because Castro does not allege any significant connection

between either the University or Hunter and Texas, and thus the Court does not have personal

jurisdiction over the either of the defendants in this case.

BACKGROUND

Castro attended Georgetown University Law Center and earned an LLM in International

Taxation.2 FAC ¶ 8. Castro alleges that while attending the University, and in advance of the

University’s annual spring job fair he had applied to attend, he was asked by the Dean’s office

about statements he made on his resume regarding his “West Point attendance and service.” Id.

¶¶ 9-10. Castro claims that he was accepted to West Point on the condition that he substantially

improve his reading and writing skills, and that he attended the United States Military Academy

Preparatory School for one year for that purpose. Id. ¶ 12. He states he attended West Point for

one year before withdrawing and receiving an honorable discharge. Id. ¶ 13.

Castro alleges that during the Dean’s inquiry, he produced documents showing he had not

done anything dishonest or misleading. Id. ¶ 15. He claims “Defendant” was not satisfied and

“intended to initiate expulsion proceedings.” Id. ¶ 16. Castro alleges that at this point he appealed

to the Dean of the Law Center that he felt “racially targeted” by Hunter, and that the Dean

appointed an independent law professor to investigate. Id. ¶ 17. The professor concluded that

expulsion was not merited. Id. ¶ 18. Castro claims that “Defendant” was “upset” by this result

and decided to bar him from participating in the spring job fair. Id. ¶ 19.

2 The facts asserted here are taken from the FAC, which defendants must accept as true for purposes of this

motion.


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Castro alleges that after he received his LLM, he applied to participate in the University’s

spring job fair (known as the Taxation Interview Program, or “TIP”) as an employer in search of

students to whom his law firm might offer employment. Id. ¶ 20. He alleges that, in a

communication he received from the University, he was advised that his application to

participate in TIP was denied. Id. ¶ 21. Although Castro omits the date of this communication,

the email attached to this memorandum as Exhibit A shows that it took place on December 16,

2015.3 Ex. A at 1.

Based on the denial of his application to take part in the job fair as an employer, Castro

brings claims against the University for race discrimination and retaliation under Title VI of the

Civil Rights Act, 42 U.S.C. §§ 2000d et seq. (“Title VI”) (Counts III and IV), and for race

discrimination under the District of Columbia Human Rights Act, D.C. Code §§ 2-1401.01 et

seq. (the “DCHRA”) (Count V). He asserts claims against Hunter for race discrimination and

retaliation under 42 U.S.C. § 1981 (“Section 1981”) (Counts I and II), retaliation under the

DCHRA (Count VI), and tortious interference with prospective business relations (Count VII).

Castro alleges that he maintains an office in Dallas, Texas and that both the University

and Hunter are located in the District of Columbia. FAC ¶¶ 4-6.

3 Although a court cannot look beyond the pleadings in deciding a Rule 12(b)(6) motion, documents

“attache[d] to a motion to dismiss are considered to be part of the pleadings, if they are referred to in the plaintiff's complaint and are central to [the plaintiff’s] claim.” Johnson v. CitiMortgage, Inc., No. 3:14-CV-1794-M-BH, 2015 WL 269970, at *3 (N.D. Tex. Jan. 21, 2015) (quoting Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 499 (5th Cir. 2000)). When such documents are incorporated into the pleadings, the Court may consider them without converting the motion to dismiss into one for summary judgment. Id. (citing Norris v. Hearst Trust, 500 F.3d 454, 461 n. 9 (5th Cir. 2007); see id. (finding documents attached by defendant to motion to dismiss that were referred to by the complaint to be incorporated into the pleadings); Jeanbaptiste v. Wells Fargo Bank, N.A., No. 3:14-CV-264-K, 2014 WL 2158415, at *7 (N.D. Tex. May 22, 2014), aff'd, No. 14-10671, 2014 WL 7723129 (5th Cir. Nov. 7, 2014) (same). Castro’s claims are premised entirely on Hunter’s alleged denial of his application to participate in the spring job fair as an employer, and he specifically references this email communication in his Complaint. See Compl. ¶ 22. Accordingly, the email should be considered part of the pleadings and appropriate for consideration in connection with this motion to dismiss.


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ARGUMENT

THE COURT SHOULD DISMISS ALL OF CASTRO’S CLAIMS UNDER RULE 12(B)(6) FOR FAILURE TO STATE A CLAIM

A. Legal Standard

“In deciding a Federal Rule of Civil Procedure 12(b)(6) motion, the Court must ‘accept

all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.’”

Chambers v. Green Tree Servicing LLC, No. 3:15-CV-1879-M-BN, 2016 WL 8672775, at *3

(N.D. Tex. Sept. 30, 2016) (quoting In re Katrina Canal Breaches Litig., 495 F.3d 191, 205-06

(5th Cir. 2007)). The plaintiff must allege “specific, well-pleaded facts, not mere conclusory

allegations to avoid dismissal.” Johnson v. CitiMortgage, Inc., No. 3:14-CV-1794-M-BH, 2015

WL 269970, at *2 (N.D. Tex. Jan. 21, 2015) (quoting Guidry v. Bank of LaPlace, 954 F.2d 278,

281 (5th Cir. 1992)). The facts alleged “must ‘raise a right to relief above the speculative level,’”

and “a complaint fails to state a claim upon which relief may be granted when it fails to plead

‘enough facts to state a claim to relief that is plausible on its face.’” Id. (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555, 570 (2007)).

B. Each of Castro’s claims is barred by the applicable statute of limitations

Castro asserts claims against the University under Title VI and the DCHRA, and against

Hunter under Section 1981, the DCHRA, and for tortious interference with prospective business

relationships (“TIPBR”). Each of those claims has either a two-year statute of limitations

(Section 1981, Title VI, and TIPBR) or a one-year statute of limitations (DCHRA). Because the

allegedly discriminatory act Castro complains of – the denial of his request to participate in the

job fair as an employer – took place more than two years before he filed his Original Complaint,

all of his claims are time-barred and should be dismissed with prejudice.


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1. Castro’s Section 1981 claims are subject to a two-year statute of limitations

Courts apply “the most appropriate or analogous state statute of limitations” to Section

1981 actions. Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 371 (2004) (quoting Goodman

v. Lukens Steel Co., 482 U.S. 656, 660 (1987)). In the Fifth Circuit, that state statute of

limitations is the “relevant state personal injury limitations period.” Johnson v. Crown

Enterprises, Inc., 398 F.3d 339, 341 (5th Cir. 2005). Texas’s personal injury statute of

limitations is two years. Tex. Civ. Prac. & Rem. Code § 16.003. Thus, Castro’s Section 1981

claims are subject to a two-year statute of limitations.4

2. Castro’s Title VI claims are subject to a two-year statute of limitations

The statute of limitations for Title VI actions is the forum state’s general personal injury

limitations period, which in Texas is two years. Frazier v. Garrison I.S.D., 980 F.2d 1514, 1521

(5th Cir. 1993) (affirming district court’s application of Texas’s personal injury statute of

limitations to Title VI claim); Achee v. Port Drum Co., 197 F. Supp. 2d 723, 728 (E.D. Tex.

2002) (applying two-year statute of limitations to Title VI claims); see Tex. Civ. Prac. & Rem.

Code § 16.003. Thus Castro’s claims under Title VI are also subject to a two-year statute of

limitations.

3. Castro’s TIPBR claim is subject to a two-year statute of limitations

“Texas law provides that a claim for tortious inference with business relations is

governed by a two-year statute of limitations.” 5636 Alpha Rd. v. NCNB Texas Nat. Bank, 879

4 A Section 1981 claim is subject to a four-year statute of limitations under 28 U.S.C. Section 1658 only if

that claim was made possible by the 1991 amendment to Section 1981. Johnson 398 F.3d at 341 (citing Jones, 541 U.S. at 382-83). The 1991 amendment broadened Section 1981’s reach to cover “conduct . . . that occurs after contract formation.” Id. However, where a plaintiff sues for conduct prior to contract formation, i.e., “for failure to enter into a new contract with him,” the claim is not subject to this four-year statute of limitations. Id. at 341-42. Castro’s claim asserts only that the University declined to enter a contract with him, see Compl. ¶ 27, and thus his claim is not subject to this four-year statute of limitations.


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F. Supp. 655, 662 (N.D. Tex. 1995) (citing First Nat. Bank of Eagle Pass v. Levine, 721 S.W.2d

287, 289 (Tex. 1986). Accordingly, this two-year limitations period governs Castro’s TIPBR

claim.

4. Castro’s DCHRA claims are subject to a one-year statute of limitations

Claims brought under the DCHRA are subject to a one-year statute of limitations. D.C.

Code § 2-1403.16(a) (“A private cause of action pursuant to this chapter shall be filed in a court

of competent jurisdiction within one year of the unlawful discriminatory act, or the discovery

thereof . . . .”); see Di Lella v. Univ. of D.C. David A. Clarke Sch. of Law, 570 F. Supp. 2d 1, 7

(D.D.C. 2008) (applying one-year statute of limitations to former law student’s discrimination

claim under the DCHRA); Henok v. Kessler, 78 F. Supp. 3d 452, 462 (D.D.C. 2015), aff'd sub

nom. Araya v. Kessler, No. 15-7021, 2015 WL 5210518 (D.C. Cir. Aug. 12, 2015) (applying

one-year statute of limitations). Having stated no basis for tolling,5 Castro’s DCHRA claims are

subject to this one-year statute of limitations.

5. Each of Castro’s claims is time-barred

Although statute of limitations is an affirmative defense, a defendant is entitled to

dismissal with prejudice under Rule 12(b)(6) if the facts giving rise to the defense appear on the

face of the complaint. Jeanbaptiste v. Wells Fargo Bank, N.A., No. 3:14-CV-264-K, 2014 WL

2158415, at *8 (N.D. Tex. May 22, 2014), aff'd, No. 14-10671, 2014 WL 7723129 (5th Cir. Nov.

7, 2014) (citing Kansa Reinsurance Co. v. Cong. Mortgage Corp. of Texas, 20 F.3d 1362, 1366

(5th Cir. 1994)). This condition is satisfied where some or all of the facts upon which the defense

is based appear in a document attached to a motion to dismiss that is incorporated by reference

5 Claims under the DCHRA are tolled if a complainant files a charge of discrimination with the District of

Columbia Office of Human Rights, see Henok, 78 F. Supp. 3d at 462 (citing D.C. Code § 2-1403.16(a)), but Castro does not allege that he ever filed such a charge.


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into the pleadings. See, e.g., id. at *7-8 (relying on substitute trustee’s deed attached by

defendant to motion to dismiss to establish that claim was barred by statute of limitations and

dismissing claim with prejudice); Lux v. Bank of New York Mellon, No. 3:13-CV-1697-M, 2014

WL 684972, at *3, 5 (N.D. Tex. Feb. 20, 2014) (Lynn, J., accepting magistrate’s findings and

recommendation) (relying on documents attached to defendant’s motion to find that claim under

Texas constitution was time-barred); Patton v. Fujitsu Tech. Sols., Inc., No. CIV.A.3:02-CV-

1848-G, 2002 WL 31498996, at *4 (N.D. Tex. Nov. 7, 2002) (relying on documents attached by

defendant to dismiss claims for being untimely and failing to exhaust administrative remedies);

Jones v. Hartford Life & Accident Ins. Co., No. 2:16-CV-316, 2016 WL 5887601, at *2 (E.D.

Tex. Oct. 7, 2016) (relying on documents attached to defendant’s motion to dismiss claims with

prejudice on limitations grounds); see id. (noting that a plaintiff cannot circumvent the relevant

limitations period “by merely omitting the . . . relevant dates from the pleadings”); Mann v.

Bartolotta, No. 3:08-CV-1834PCD, 2009 WL 1098982, at *2 (D. Conn. Apr. 21, 2009) (“The

fact that Plaintiff appears to have intentionally omitted a relevant date from the complaint does

not act to save the complaint from dismissal on statute of limitations grounds.”).

Castro does not allege when the act of which he complains – the denial of his request to

participate in the spring job fair as an employer – took place. FAC ¶ 21. However, Exhibit A

shows that Castro was made aware of the denial on December 16, 2015 when Molly Scott, a

University employee, emailed Castro to inform him of the denial, copying Hunter. Ex. A

(Dec. 16, 2015 email) at 1.6 This email responded to Castro’s email requesting that he be

allowed to participate. Id. at 1-2. Castro did not file his Original Complaint until March 19, 2018,

more than two years later.

6 As explained in note 3, supra, this document is incorporated into the pleadings because Castro references it

in the FAC and, as the communication upon which all of his claims are based, it is central to his claims.


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Given the two-year statute of limitations that applies to his claims under Section 1981,

Title VI, and for TIPBR, and the one-year statute of limitations that applies to his DCHRA

claims, Exhibit A conclusively demonstrates that all of Castro’s claims are time-barred. The

Court should dismiss them with prejudice.

IN THE ALTERNATIVE, THE COURT SHOULD DISMISS ALL OF CASTRO’S CLAIMS UNDER RULE 12(B)(2) FOR LACK OF PERSONAL OR GENERAL

JURISDICTION

In the event the Court does not find that all of Castro’s claims are time-barred, all of them

should be dismissed for another reason: Castro has alleged nothing to establish personal

jurisdiction over either the University or Hunter in the Northern District of Texas.7

A. Legal Standard

“When a defendant challenges personal jurisdiction, the plaintiff bears the burden of

‘mak[ing] a prima facie showing that personal jurisdiction is proper.’” Celanese Corp. v.

Clariant Corp., No. 3:14-CV-4165-M, 2015 WL 10580916, at *1 (N.D. Tex. July 27, 2015)

(Lynn, J.) (quoting Monkton Ins. Servs., Ltd. v. Ritter, 768 F.3d 429, 431 (5th Cir. 2014)). In

evaluating the motion the Court “may consider affidavits, interrogatories, depositions, oral

testimony, or any combination of the recognized methods of discovery,” id. (quoting Revell v.

Lidov, 317 F.3d 467, 469 (5th Cir. 2002)), but all factual conflicts raised by such documents are

resolved in the plaintiff’s favor. Id. (citing Monkton, 768 F.3d at 431). Because the Texas long-

arm statute extends to the limits of what is permissible under the United States Constitution, this

7 On page 14 of Plaintiff’s Response in Opposition to Defendants’ Motion to Dismiss, Castro does not argue

in favor of jurisdiction. Instead, he has offered a one sentence response to defendants’ jurisdiction arguments in which he asks the Court to transfer this case “to another federal court that would have jurisdiction.” And he has filed a First Amended Complaint that contains the same faulty jurisdiction allegations he made in the Original Complaint. Although this Court has the authority to transfer a case in which it lacks jurisdiction “in the interest of justice,” Aguacate Consol. Mines, Inc. of Costa Rica v. Deeprock, Inc., 566 F.2d 523, 524 (5th Cir. 1978), there is nothing before the Court compelling the exercise of such authority here. Nor has Castro proposed another district to which he believes the case should be transferred.


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Court can exercise of personal jurisdiction over a defendant only if that exercise is consistent

with Constitutional due process. Id. at *2 (citing In re Chinese–Manufactured Drywall Products

Liab. Litig., 753 F.3d 521, 535 (5th Cir. 2014); Stroman Realty, Inc. v. Antt, 528 F.3d 382, 385

(5th Cir. 2008)).

B. The Court lacks general jurisdiction over the University

A court may exercise general jurisdiction over nonresident defendant corporations when

“their affiliations with the State are so continuous and systematic as to render them essentially at

home in the forum State.” My Fabric Designs, Inc. v. F+W Media, Inc., No. 3:17-CV-2112-L,

2018 WL 1138436, at *4 (N.D. Tex. Mar. 2, 2018) (quoting BNSF Ry. Co. v. Tyrrell, 137 S.Ct.

1549, 1558 (2017)). Whether a corporation is “essentially at home” focuses on the corporation’s

“activities in their entirety, nationwide and worldwide,” id. (quoting Daimler AG v. Bauman, 571

U.S. 117, 762 (2014)), not “solely on the magnitude of the defendant’s in-state contacts.” Id.

(quoting BNSF, 137 S.Ct. at 1559). The Supreme Court has said that it will be the “exceptional

case” in which there exists general jurisdiction over a corporate defendant other than in the

forums where it is incorporated and has its principal place of business. BNSF, 137 S.Ct. at 1558

(quoting Daimler, 571 U.S. at 761 n.19); see also Monkton, 768 F.3d at 432 (“It is . . . incredibly

difficult to establish general jurisdiction [over a corporation] in a forum other than the place of

incorporation or principal place of business.”). Only once the plaintiff establishes the requisite

minimum contacts with the forum state as described above does the burden shift to the defendant

to show that the assertion of jurisdiction would be unfair. My Fabric Designs, 2018 WL

1138436, at *4 (citing Walk Haydel & Assocs., Inc. v. Coastal Power Prod. Co., 517 F.3d 235,

245 (5th Cir. 2008)).

Here, Castro makes no allegation that the University has any connection with Texas,

much less the “continuous and systematic” contacts required to show that the University is


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“essentially at home” in Texas. See FAC ¶ 6 (alleging only that the University is located in the

District of Columbia and organized under District of Columbia law).

Moreover, even if Castro had alleged that the University had some connection with

Texas, this Court and others “have unanimously determined that [an out-of-state educational]

institution is not subject to general personal jurisdiction where its only contacts with the forum

state are its involvement in activities that are typical of a nationally prominent university.” Am.

Univ. Sys., Inc. v. Am. Univ., 858 F. Supp. 2d 705, 713-14 (N.D. Tex. 2012). Instead, “[e]vidence

that a university recruits or admits students from the forum state, employs forum residents,

receives revenue from the state in the form of fundraising, or has contact with prospective

students and alumni in the state is simply insufficient to support the exercise of general

jurisdiction.” Id. at 714. See, e.g., Trustees of Columbia Univ. v. Ocean World, S.A., 12 So. 3d

788, 794 (Fla. Dist. Ct. App. 2009) (“We agree with other courts which have held that the

activities of a school’s alumni association are not the type of systematic, continuous business

activity that results in general jurisdiction over the school.”); Richards v. Duke Univ., 480 F.

Supp. 2d 222, 230 (D.D.C. 2007) (recruiting students, raising funds, participating in events,

hosting faculty, and conducting government relations and lobbying in the District of Columbia

insufficient to establish general jurisdiction); Park v. Oxford Univ., 35 F. Supp. 2d 1165, 1167

(N.D. Cal. 1997), aff’d, 165 F.3d 917 (9th Cir. 1998) (fact that Oxford solicits money from

California residents as an “important form of fund-raising” insufficient to establish general

jurisdiction); Norris v. Oklahoma City University, No. C-93-1626-VRW, 1993 WL 313122, at *1

(N.D. Cal. Aug. 3, 1993), aff’d, 21 F.3d 1115 (9th Cir. 1994) (that university maintained contact

with current students and alumni within forum state insufficient to constitute “continuous and

systematic” contacts for purposes of general jurisdiction); Hardnett v. Duquesne Univ., 897 F.


-12-

Supp. 920, 923 (D. Md. 1995) (no general jurisdiction over university where recruiter visited

college fair in forum state and toll-free number was made available to students in forum state to

enable students to obtain more information about university).

Castro pleads no facts showing, or even suggesting, that the University is “essentially at

home” in Texas. He has not met his burden to demonstrate minimum contacts, and thus he

cannot establish general jurisdiction over the University in Texas.

C. The Court lacks general jurisdiction over Hunter

In the case of a natural person, “general personal jurisdiction exists in her state of

domicile.” Ebert v. Levy, No. CV 17-0925, 2018 WL 934834, at *3 (W.D. La. Feb. 15, 2018)

(citing Milliken v. Meyer, 311 U.S. 457, 463–64 (1940)). A natural person is also subject to suit

if she is served while physically present in the forum state. Id. (citing Burnham v. Superior Court

of Cal., Cty. of Marin, 495 U.S. 604, 628 (1990) (plurality opinion).

Castro alleges only that Hunter has an office in the District of Columbia. FAC ¶ 5. He

alleges nothing about where she resides. Castro has alleged no basis to establish general

jurisdiction over Hunter in Texas.

D. The Court lacks specific jurisdiction over defendants

“A court may exercise specific personal jurisdiction over a nonresident defendant when

its contacts with the forum state arise from, or are directly related to, the cause of action.” Am.

Univ. Sys., 858 F. Supp. 2d at 716 (citing Helicopteros Nacionales de Colombia, S.A. v. Hall,

466 U.S. 408, 414 n.8 (1984)). The inquiry “focuses on the relationship among the defendant, the

forum, and the litigation.” Chinese–Manufactured Drywall, 753 F.3d at 529 (quoting Walden v.

Fiore, 134 S.Ct. 1115, 1121 (2014)). The Fifth Circuit requires a three-step inquiry to analyze an

assertion of specific jurisdiction:


-13-

(1) whether the defendant has minimum contacts with the forum state, i.e., whether it purposely directed its activities toward the forum state or purposefully availed itself of the privileges of conducting activities there; (2) whether the plaintiff's cause of action arises out of or results from the defendant's forum-related contacts; and (3) whether the exercise of personal jurisdiction is fair and reasonable.

Celanese, 2015 WL 10580916, at *3 (quoting Monkton, 768 F.3d at 433). The plaintiff must

establish the first two prongs before the burden shifts to the defendant regarding the third prong.

Id.; My Fabric Designs, 2018 WL 1138436, at *5.

The “touchstone” of the minimum contacts issue is “‘whether the defendant's conduct

shows that it reasonably anticipates being haled into court.’” Celanese, 2015 WL 10580916, at

*3 (quoting McFadin v. Gerber, 587 F.3d 753, 759 (5th Cir. 2009)). As such, “[s]pecific

jurisdiction cannot be established through random, fortuitous, or attenuated contacts, nor from

the ‘unilateral activity of a third party or another person.’” Id. (quoting McFadin, 587 F.3d at

759); see also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985). Moreover, “the Fifth

Circuit has consistently held that ‘merely contracting with a resident of a forum state is

insufficient to subject the nonresident to the forum’s jurisdiction.’” My Fabric Designs, 2018

WL 1138436, at *6 (quoting Freudensprung v. Offshore Technical Servs., Inc., 379 F.3d 327,

344 (5th Cir. 2004)). Further, a defendant’s communications with a person in the forum state “do

not, by themselves, constitute purposeful availment sufficient to invoke the benefits and

protections of the forum state’s laws.” Id. (citing Holt Oil & Gas Corp. v. Harvey, 801 F.2d 773,

778 (5th Cir. 1986)).

As discussed above, Castro does not allege that defendants have any contacts with Texas,

minimum or otherwise. Nor does he identify any way in which his claims arose out of any

conduct specifically directed at Texas. He alleges that he applied to participate as employer in

the University’s spring job fair held in Washington, D.C. and that the decision to deny his


-14-

participation was made by Hunter in the District of Columbia and communicated by email. FAC

¶¶ 20-21.

The gist of Castro’s allegations is that defendants refused to contract with him. But if

“merely contracting with a resident of the forum state does not establish minimum contacts,”

Celanese, 2015 WL 10580916, at *3 (quoting McFadin, 587 F.3d at 760), then surely not

contracting with a resident of the forum state cannot satisfy the burden either. Castro pleads no

facts which show that the University and one of its employees would have “reasonably

anticipate[d] being haled into court” in Texas when they sent him an email in response to his

request to participate in a job fair in Washington. Id. at *4 (quoting McFadin, 587 F.3d at 759).

He cannot make out a prima facie case of specific jurisdiction over the University or Hunter.

CONCLUSION

For the reasons stated above, defendants Georgetown University and Nan Hunter

respectfully request that the Court dismiss all of plaintiff John Anthony Castro’s claims against

them with prejudice under Rule 12(b)(6) because Castro cannot state a claim against either of

them under any of the theories he raises. Should the Court disagree, in the alternative it should

dismiss the Complaint under Rule 12(b)(2) for failure to allege personal jurisdiction over either

defendant.


-15-

Dated: May 14, 2018

Respectfully submitted, /s John A. Basinger ___ John A. Basinger (Texas Bar No. 00796173) Saul Ewing Arnstein & Lehr LLP One Riverfront Plaza 1037 Raymond Blvd., Suite 1520 Newark, New Jersey 07102-5426 (973) 286-6724 Tel. (973) 286-6800 Fax [email protected] William D. Nussbaum (pro hac vice motion forthcoming) Saul Ewing Arnstein & Lehr LLP 1919 Pennsylvania Avenue NW Suite 550 Washington, D.C. 20006 (202) 295-6652 Tel. (202) 295-6715 Fax [email protected] Counsel for Defendants


Exhibit A

Case 3:18-cv-00645-M Document 14-1 Filed 05/14/18 Page 1 of 4 PageID 122

3/26/18, 6:36 AMGeorgetown University Mail - RE: Interested in Recruiting

Page 1 of 3https://mail.google.com/mail/u/0/?ui=2&ik=0ecb6ee605&jsver=lr-Nd…true&search=query&th=151ac7d7c81a0a33&siml=151ac7d7c81a0a33&mb=1

Taxation.Interview.Program [Organization] <[email protected]>

RE: Interested in Recruiting1 message

Taxation Interview Program <[email protected]> Wed, Dec 16, 2015 at 3:31 PMTo: "John Anthony Castro, J.D., LL.M." <[email protected]>, Taxation Interview Program<[email protected]>Cc: "Nan D. Hunter" <[email protected]>

Dear John,

I hope that you are doing well. I have discussed your interest in TIP with Dean Hunter, who is copied here, and we donot think that the program is suited to your recruitment efforts, given some of the issues that arose while you were aTax LL.M. student participating in TIP.

Thanks,

Molly

Molly Scott, Esq.

Assistant Director, Graduate Career & Professional Development

Georgetown University Law Center

Hotung 5000

(202) 662-9368 (direct)

(202) 662-9036 (front desk)

http://www.law.georgetown.edu/graduate/ProfessionalDevelopment.htm

Follow us on Twitter (@GtownLawProfDev) and LinkedIn (LL.M. Careers)

From: John Anthony Castro, J.D., LL.M. [mailto:[email protected]] Sent: Friday, December 11, 2015 7:13 PMTo: Taxation Interview ProgramSubject: Interested in Recruiting




Can you send me more information on how our firm might be able to participate in and possibly recruit an upcominggraduate?

_________________________________________________

John Anthony Castro, J.D., LL.M. International Tax Attorney

Managing Partner, Castro & Co. LLC

Direct 202-594-4344, Fax 866-700-7595

[email protected]

202-792-6600 Washington DC407-990-1170 Orlando

305-747-7006 Miami

214-444-7010 Dallas

1701 Pennsylvania Ave NW, Suite 300, Washington, DC 20006

121 South Orange Avenue, Suite 1500, Orlando, FL 32801

701 Brickell Avenue, Suite 1550, Miami, FL 33131

13155 Noel Road, Suite 900, Dallas, TX 75240

CastroAndCo.com

_______________________________




Confidentiality: The information transmitted herein is intended only for the person(s) or entity to which it is addressed and maycontain confidential material and/or it may constitute an attorney-client communication that is privileged at law. Any review, orother use of, or taking of any action in reliance upon, this information by persons or entities other than the intended recipient(s)is prohibited. If you received this electronic mail transmission in error, please contact the sender and delete the material fromyour computer without copying it. Thank you for your cooperation. This transmission is neither intended, nor shall it beconstrued, to provide legal advice, create an attorney-client relationship, or include my signature.

Tax Disclosure: Any tax advice contained in this communication, including attachments, was not written to be relied upon aslegal advice for the purpose of avoiding tax-related penalties under the Internal Revenue Code. If you would like a written taxopinion upon which you can legally rely for the purpose of avoiding penalties, please request one.

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Documents

UNITED STATES DISTRICT COURT FOR THE NORTHERN … · 5:17-CV-062-C, 2017 WL 6885790, at *2 (N.D. Tex. Aug. 10, 2017) (examining whether the amended complaint sufficiently addressed